California Forum

Donald Trump probably could be impeached under the law. Politics are less clear

President Donald Trump, Dec. 5.
President Donald Trump, Dec. 5. AP

California billionaire activist Tom Steyer is paying for television ads nationwide urging that President Donald Trump be impeached, and raising an important legal question: Is there any constitutional basis for impeachment?

Whether it makes sense to pursue impeachment now given the Republican control of Congress is a matter of politics. I focus on the law.

First, what is the constitutional standard for impeachment? Article II, Section 4 of the Constitution provides for impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.” There is no definitive answer to what constitutes a “high crime or misdemeanor.” There is no Supreme Court case addressing it.

But having researched this extensively, I believe the Constitution provides for impeachment if there is a serious abuse of power. A criminal violation could be a basis for finding a “high crime or misdemeanor,” but it is not required.

There have been three serious efforts to impeach a president. Andrew Johnson was the first president to be impeached, in 1867. After the end of the Civil War, Congress became frustrated with Johnson, a Southerner from Tennessee, presiding over Reconstruction.

Congress adopted the Tenure in Office Act of 1867 to keep Johnson from firing Lincoln’s Cabinet. The act declared that such a firing would be deemed a “high misdemeanor.” The Supreme Court found that the Tenure in Office Act likely violated separation of powers. Nonetheless, after Johnson fired Secretary of War Edwin Stanton, the House impeached and Johnson avoided removal by just one vote in the Senate.

The second serious attempt to impeach a president occurred in 1974 when the House Judiciary Committee voted three articles of impeachment against Richard Nixon. One was for obstruction of justice in connection with the Watergate cover-up; one was for using government agencies, such as the FBI and the IRS, for political advantages; and the final article was for failing to comply with subpoenas. Before the matter could be considered by the entire House, Nixon resigned. Some of the articles of impeachment were for criminal acts; some were for abuses of power that were not crimes.

The House, voting almost entirely on party lines, impeached President Bill Clinton in 1998 for perjury before a grand jury and for impeding the administration of justice by saying during a deposition: “I have never had sexual relations with Monica Lewinsky. I’ve never had an affair with her.” The Senate convicted on neither count and Clinton finished his term in office.

These episodes show there is no legal definition of what constitutes a high crime or misdemeanor, and that Congress always is likely to be political. But these precedents, along with what is known about the phrase, “high crimes and misdemeanors,” support the view that high crimes and misdemeanors can involve serious abuse of power while in office.

The question remains whether there is a basis for investigating Trump for “high crimes and misdemeanors.” Article I, Section 9 of the Constitution prohibits any person holding a position of trust in the federal government from receiving any present or emolument from a foreign state.

The Constitution broadly prohibits receiving any benefit from a foreign government. Yet Trump constantly receives economic benefits from foreign countries, including through hotels owned in his name.

China, for example, granted Trump valuable trademarks after denying them to him for years. Within days of receiving these, Trump reversed course on a key issue affecting China, shifting from entertaining a pro-Taiwan policy to supporting a “one China” policy.

Article II, Section 1 of the Constitution says the president shall receive compensation for serving, but not “any other emolument from the United States.” This provision was meant to keep a president from using the position to receive other benefits from the federal government. Yet Trump constantly does just that, as federal agencies rent space from buildings he owns.

Such serious constitutional violations can be deemed “high crimes and misdemeanors.” But the legal standard and politics are not the same. Congress is partisan. Republicans in the House are not likely to pursue impeachment any time soon. Whether politically it is desirable to pursue impeachment now, as Steyer urges, is a very different question from the legal one.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law, and co-counsel in a lawsuit against Trump for violating the Emoluments Clauses. He can be reached at echemerinsky@law.berkeley.edu.

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